Cohabitation

What were the 2 most notable findings of the Nuffield Foundation Report on the Family Law (Scotland) Act 2006?

1. Lack of minimum duration not problematic - most couples have lengthy cohabitation, are middle-aged and 44% have children. 2. Difficulty in calculating economic disadvantage, wide discretion and time limit for bringing claim is too short.

What are the 4 key reform proposals?

1. Law Commission 2007 - Cohabitation: Financial Consequences of Relationship Breakdown 2. Lord Lester's Bill 2008 3. Family Law (Scotland) Act 2006 4. Lord Marks' Bill 2013

In what 2 ways have the courts perceived cohabitants? What is the case associated with this?

1. cohabitant as a prostitute - Upfill v Wright 2. cohabitation as living in sin

What are the three reasons for which people may cohabit?

1. historically, were unable to divorce 2. ideologically opposed to marriage 3. 'trial' period before marriage

What are the two contract law principles which cohabitation contracts were thought to fall foul of? What are the cases associated with each of these?

1. intention to create legal relations - Balfour v Balfour. 2. contract offends public policy - Fender v St John-Milday.

What were the two main differences between the Law Commission 2007 proposals and Lord Lester's Private Members Bill 2008?

1. opt-out required separate legal advice 2. relief did not require economic imbalance, could award when 'just and equitable to do so, having regard to all the circumstances' and statutory checklist.

What are the two currently available ways of getting around these problems?

1. provision for children in Schedule 1, CA 1989 2. cohabitation contracts

What are the 4 continuing problems for cohabitants?

1. the common law marriage myth 2. ownership of the family home 3. ownership of personal property/assets 4. inheritance - testate and intestate

What are the six factors which make legislating for cohabitants difficult?

1. undermining marriage 2. transposing problems of marriage 3. defining cohabitation 4. balancing coverage and impact - opt-in or opt-out? 5. who should create the reform? 6. media coverage

What is the time limit for bringing a claim under the Family Law (Scotland) Act 2006?

1year from the end of the relationship

How did the Law Commission 2007 proposal define cohabitant status?

2 people living in the same household in a relationship.

What was the time limit for bringing a claim under the Law Commission 2007 proposals?

2years

How many people were cohabiting in 2012 and why is this important?

6million. It is the fastest growing family type in the UK.

Who argues that this shows that the public are 'dangerously naïve' about the consequences of cohabitation outside of marriage?

Bridge

Who favors opt-out agreements on the basis that they respect party freedom of choice?

Bridge.

Who said that this merely creates 'delayed poverty'?

Bridge.

Which case demonstrates the unfairness of this distinction in treatment?

Burns v Burns.

Which case shows the common law marriage myth in the courts and what were its facts?

Churchill: the deceased was under he impression that if he lived with the woman on a permanent basis for more than 6months, this would entitle her to an interest in his property.

What did the Law Society say that cohabitation reform could do to the institution of marriage?

Could 'underline the importance and significance of marriage'.

How are cohabitants defined in the Family Law (Scotland) Act 2006?

Couple living together as if they were husband and wife. No minimum duration.

Which case suggested a change in judicial attitude and what did it say?

Dyson Holdings v Fox, Lord Denning: 'such unions are far commoner than they used to be. The social stigma...[has[ entirely disappeared'.

How did the Law Reform (Succession) Act 1995 change this?

Equalised by providing a ground for cohabitants but it was not as extensive as married couples - only allows 'necessary maintenance'.

Who talks about the different between widespread 'deep' rights and narrow 'shallow' rights?

Fox

Why is Lord Marks' Bill 2013 notable?

Goes back to economic disadvantage and list of factors. Still not due to make any more progress.

Why weren't the proposals under Law Commission 2007 implemented?

Government statement 2008 said that it would await the outcome of additional research based on Scottish Act.

Which case suggests that the financial provision under the Family Law (Scotland) Act 2006 would still be determined on the basis of 'fairness'?

Gow v Grant.

What was required to be eligible for financial order under the Law Commission 2007 proposal?

Have a child together or have lived together for either 2-5years. No valid opt-out agreement.

Who suggests that there is a movement towards 'familialisation' in trust law and what does this mean?

Hayward - it means the courts are considering family principles.

Who argue that the Law Commission is the wrong body to be proposing reforms?

Hughes, Davis and Jacklin

What is the difference between the treatment of married and unmarried couples when dealing with testate inheritance?

Inheritance (Provision for Family and Dependents) Act 1975 means married couples automatically entitled to 'reasonable financial provision'. Unmarried can claim if they prove economic dependence and had been living together for 2yrs.

What did Cretney say was the problem with the current status of the law?

It ignores the family outside of marriage.

What did Lady Hale say about the Family Law (Scotland) Act 2006 in Gow v Grant?

It is 'both practicable and fair'.

What is the current status of cohabitation reform and which government minister said this?

Justice Minister, Jonathon Djanogly - considered law commission proposals in light of FL(s)A 2006 but findings did not provide 'a sufficient basis for a change in the law'.

Which report originally suggested a much wider definition of cohabitants?

Law Commission 2002: Sharing Homes - A Discussion Paper

Which report was the first the suggest the focus on economic disadvantage and the definition of cohabitants based on 2yrs or more?

Law Society 2002: Cohabitation - The Case for Clear Law

What is the difference between the treatment of married and unmarried couples when dealing with the ownership of the family home?

Married couples: MCA 1973 enables court to recalibrate interests in the home. Unmarried couples: cannot rely on MCA 1973 so their claim must be based on trusts.

What is the difference between the treatment of married and unmarried couples when dealing with the ownership of personal property and assets?

Married couples: MCA 1973, s25 distributes assets. Unmarried couples: ordinary law. No maintenance claims.

What is the difference between the treatment of married and unmarried couples when dealing with intestate inheritance?

Married couples: surviving spouse automatically entitled and matrimonial home exempt from inheritance tax. Unmarried couples: no automatic entitlement and must pay tax on any willed gift.

Who identifies the difficulties with defining cohabitation and what do they say?

Mee: the spectrum ranges from almost-marriage to two persons who occupy the same dwelling for the purposes of sexual attraction.

What other reasons does Deech give for not reforming cohabitation?

Normalizes a lifestyle that is no good for children and a forced law of cohabitation could deter men from making any commitment at all.

On what basis was the financial order to be calculated under the Law Commission 2007 proposal?

Parties must demonstrate retained benefit or economic disadvantage based on qualifying contributions. This could then be adjusted having regard to the discretionary factors.

Which problem for cohabitants has mostly been solved? Which case shows the problem and which case suggests it has been solved?

Passage of tenancy on death. Problem = Fitzpatrick v Sterling housing association - rent rules didn't allow homosexual couples to pass rent. Solution = Ghaidan v Godin-Mendoza - extended.

Who criticized the opt-out provisions in Lord Lester's Bill and why?

Probert: not easy or cheap - and not 'cast-iron guarantee'.

Who has responded to the statement of the government on the status of cohabitation reform and what did they say?

Professor Cooke (Law Commission Chairwoman of the Family Team): implementation should not be delayed beyond early stages of next parliament. Noted growing prevalence of cohabitation will mean reform can 'only become more pressing' over time.

Who argues that we shouldn't create specialized cohabitation laws at all and why? What are the other three reasons she gives?

Ruth Deech: cohabitants have chosen not to be governed by law. Imposing law would 'retard the emancipation of women', be a 'bonanza' to lawyers and impose a 'charter for the footballer's girlfriend'.

Where are the rules on the provision for children found and how might this help to circumvent the problems?

Schedule 1, CA 1989: allow court to make order awarding property to parent for the benefit of child until they reach age of majority.

In what document did the government demonstrate their conflicting opinion on whether they should support marriage? What did it say?

Supporting Families 1998: said they wanted to strengthen the institution of marriage; but then said that the don't want to make people marry or penalize those who choose not to.

According to the 2004 survey by which organization, what percentage of people thought that simply living together could give couples the same rights as marriage?

Survey by 'advicenow' 61%

What is the leading case which suggests a change in judicial attitudes to cohabitation contracts?

Sutton v Michon de Reya - court gave some support to contracts which determine the sharing of property at the end of cohabitation but not here since it concerned master-slave relationship.

Why is there a general reluctance to recognize cohabitation contracts?

They were thought to fall foul of two contract law principles.

On what basis may the court award financial remedy under the Family Law (Scotland) Act 2006?

To assist ongoing burden of childcare or correct economic imbalance.

What is cohabitation?

Two people living together but not in a formal legal relationship such as marriage.

What relief was available under the Law Commission 2007 proposals?

Variety including lump sums and property transfers. However there was no maintenance payments because the reforms leant towards a clear break.

What is the current status of Lord Lester's Bill?

unlikely to go further - too radical?